CEDH · CASELAW;REPORTS;ENG — 18 avril 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      EUROPEAN COMMISSION OF HUMAN RIGHTS                            Application No. 22110/93                     Ursula BALMER-SCHAFROTH and nine others                                     against                                   Switzerland                            REPORT OF THE COMMISSION                         (adopted on 18 April 1996)                                TABLE OF CONTENTS                                                                      Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2     II.    ESTABLISHMENT OF THE FACTS       (paras. 17-39). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 30-39) . . . . . . . . . . . . . . . . . . . . . 5     III.   OPINION OF THE COMMISSION       (paras. 40-65). . . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaints declared admissible            (para. 40) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Points at issue            (para. 41) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    Article 6 para. 1 of the Convention            (paras. 42-57) . . . . . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 58) . . . . . . . . . . . . . . . . . . . . . . .10         D.    Article 13 of the Convention            (paras. 59-62) . . . . . . . . . . . . . . . . . . . . .10              CONCLUSION            (para. 63) . . . . . . . . . . . . . . . . . . . . . . .11         E.    Recapitulation            (paras. 64-65) . . . . . . . . . . . . . . . . . . . . .11                                  TABLE OF CONTENTS                                                                    Page     DISSENTING OPINION OF MM. H.G. SCHERMERS, B. MARXER, M.A. NOWICKI, I. CABRAL BARRETO, J. MUCHA AND C. BÎRSAN . . . . . . . . . . . . .12     DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY MM. A.S. GÖZÜBÜYÜK, B. CONFORTI, D. SVÁBY, P. LORENZEN AND K. HERNDL. . . . . . . . . .14     DISSENTING OPINION OF MR. J.-C. SOYER . . . . . . . . . . . . . . .16     APPENDIX :        DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . . . . . . . .17     I.INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.     The application   2.     The application has been introduced by ten applicants all of whom are Swiss citizens.   Their particulars are set out in the Appendix below (see p. 27).   Before the Commission the applicants are represented by Mr R. Weibel, a lawyer practising in Bern.   3.     The application is directed against Switzerland.   The respondent Government are represented by Mr. Ph. Boillat, Head of the European Law and International Affairs Section of the Federal Office of Justice, Agent.   4.     The case concerns the applicants' complaint about the lack of access to court in respect of the decision of the Swiss Federal Council to grant the operation permit of the Mühleberg nuclear power plant. The applicants also complain that no effective remedy was available to them to complain about a breach of their right to life and to bodily integrity.   The applicants invoke Articles 6 para. 1 and 13 of the Convention.     B.     The proceedings   5.     The application was introduced on 14 June 1993 and registered on 22 June 1993.   6.     On 11 May 1994 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.     The Government's written observations were submitted on 22 July 1994.   The applicants replied on 14 October 1994.   8.     On 18 October 1995 the Commission (Second Chamber) declared the application admissible.   On 8 March 1996 the case was referred to the Plenary Commission.   9.     The text of the Commission's decision on admissibility was sent to the parties on 6 November 1995 and they were invited to submit such further information or observations on the merits as they wished.   10.    The Government and the applicants each submitted further observations on 20 December 1995.   The Government also submitted additional observations on 29 February 1996.   In their submissions the Government argued that domestic remedies were not fully exhausted within the meaning of Article 26 of the Convention; and that the applicants could not claim to be victims within the meaning of Article 25 of the Convention.   However, the Commission found no basis for applying Article 29 of the Convention.   11.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   12.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    H. DANELIUS, Acting President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL   13.    The text of this Report was adopted on 18 April 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   15.    The Commission's decision on the admissibility of the application is annexed hereto.   16.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.    ESTABLISHMENT OF THE FACTS     A.     The particular circumstances of the case           1.    The Mühleberg Nuclear Power Plant   17.    The nuclear power plant at Mühleberg in the Canton of Bern has been operated by a private company, the Bern Power Plant Ltd. (Bernische Kraftwerke AG), since 1971 when it was first put into operation.   The Swiss Federal Council (Bundesrat), i.e. the Swiss Federal Government, has regularly permitted the company to continue the operation of the power plant.   While initially the permits were valid for a limited period of time of six months, subsequently they were extended up to a period of seven years in 1985.   18.    On 9 November 1990 the company filed a request with the Federal Council for the renewal for an unlimited period of time of the operation permit, and for an increase in the power plant's permitted output of ten per cent.   The application was published by the Federal Ministry for Transport and Energy (Eidgenössisches Verkehrs- und Energiedepartement) in the Federal Gazette (Bundesblatt) on 4 December 1990.   The Ministry stated inter alia that persons complying with the conditions inter alia of Section 48 of the Federal Administrative Procedure Act (Verwaltungsverfahrensgesetz; see below, para. 33) could file an objection (Einsprache).   19.    The applicants reside in the vicinity of the Mühleberg nuclear power plant.   The communities in which the applicants reside, i.e. Wilteroltigen, Detligen and Gümmenen, are part of a first degree emergency area (Alarmzone).   The applicants are partly proprietors, partly tenants of their homes.           2.    Objections against request for operation permit   20.    By 4 March 1991 over 28,000 written objections, among them the objections of the present applicants, were filed with the Federal Energy Office (Bundesamt für Energiewirtschaft) against the request. As many as 21,000 objections were submitted by persons residing in Germany and Austria.   Over 99 % of the objections were photocopied.   21.    In their objections the complainants requested the closure of the nuclear power plant.   They claimed inter alia that it failed to satisfy technical and safety requirements and endangered the natural environment of the surrounding area.   They requested the taking of additional evidence and the imposition of provisional measures.   The complainants also disputed the impartiality of the Federal Council and other administrative bodies involved in the proceedings.   In support of their objections the complainants submitted expert opinions prepared by the Ecological Institute (Ökoinstitut) at Darmstadt in Germany and by the specialist Professor J. B. of the Munich Solmer Institute.   22.    In respect of the jurisdiction of the Federal Council the complainants further noted that according to the applicable law the request for the operation permit had to be decided in first and last instance by the Federal Council.   The statement continued:   (Translation)         "Insofar as the administrative law appeal against the contested       operation permit according to Section 99 (e) of the Federal       Judiciary Act should be inadmissible, the permit, which cannot       be examined by a court on the domestic level, could only be       contested by means of a human rights application according to       Article 6 para. 1 of the Convention for the Protection of Human       Rights and Fundamental Freedoms: the permit relates to the       applicants' civil rights without having been examined by an       independent and impartial court established by law."   (German)         "Sofern die Verwaltungsgerichtsbeschwerde gegen die erteilte       Betriebsbewilligung gemäss OG Artikel 99 lit. e unzulässig sein       sollte, wäre die national unjustiziable Bewilligung nur noch mit       der Menschenrechtsbeschwerde gemäss Art. 6 Ziff. 1 der Konvention       zum Schutze der Menschenrechte und Grundfreiheiten anfechtbar:       die Bewilligung betrifft die zivilrechtlichen Ansprüche der       Einsprecherinnen, ohne von einem unabhängigen und unparteiischen,       auf Gesetz beruhenden Gericht geprüft worden zu sein."   23.    On 3 September 1991 and 23 June 1992 the Federal Ministry for Transport and Energy rejected the requests for interim measures and for the taking of additional evidence.   24.    On 28 October 1992 the Federal Council dismissed a complaint that Federal Councillor (Bundesrat) Ogi, the Head of the Federal Ministry for Energy and Transportation, was biased.           3.    Federal Council's decision of 14 December 1992   25.    On 14 December 1992 the Federal Council dismissed all objections as being unfounded and granted the company a limited operation permit expiring on 31 December 2002.   Furthermore, it permitted the company to increase its output by ten per cent.   This permit was linked to various safeguards concerning, for instance, threshold levels for radioactive substances and technical improvements of the plant.   The company was also requested to submit periodically updated safety reports and to develop emergency strategies until mid-1993.   26.    In its decision the Federal Council first examined whether all complainants were entitled to file objections.   It considered that according to its constant practice persons living in Germany and Austria did not enjoy this entitlement in view of the distance between the nuclear power plant and the respective borders.   The Council nevertheless considered that it need not examine the entitlement of the remaining complainants, as it sufficed to note that certain complainants lived in the first degree emergency area around the nuclear power plant and were therefore entitled to participate in the objection proceedings.   27.    For its decision on the merits the Federal Council relied on expert opinions prepared by the Principal Office for the Safety of Nuclear Facilities (Hauptabteilung für die Sicherheit von Kernanlagen) and the Section for Nuclear Technology and Safety (Sektion Nukleartechnologie und Sicherheit) of the Federal Office for Energy. The Federal Council also took into account statements of the Federal Commission for the Safety of Nuclear Power Plants (Eidgenössische Kommission für die Sicherheit von Kernanlagen) and of the Canton of Bern.   Finally, it considered a study submitted by the company on possible effects of the power plant on the river Aare which was integrated into its cooling system.   28.    In its decision the Federal Council considered that nuclear power plants built in the early 1970s generally failed to meet contemporary technical standards which had been continuously raised over the past years.   The Federal Council therefore regarded it as its task to ascertain that improvements regarding security measures were undertaken.   It concluded that on the basis of the evidence submitted no relevant deficiencies could be established.   29.    In respect of the complainants' objection alleging a breach of their right to life and physical well-being the Federal Council found that the Swiss Federal Constitution only protected individuals from deliberate interferences.   There was no such interference as long as all necessary technical precautions were being respected.   Insofar as it was known that two employees suffered from cancer, this could not be attributed to radiation in the power plant.   The Federal Council also dismissed complaints about environmental interferences.   In respect of the river Aare the Federal Council considered that minor environmental effects would have to be balanced against the public interest in a supply of electric energy.     B.     Relevant domestic law           1.    Federal Nuclear Act   30.    Section 4 para. 1 of the Federal Nuclear Act (Eidgenössisches Atomgesetz) of 23 December 1959 provides that construction and operation of nuclear power plants and changes thereto require an operation permit.   According to Section 5 para. 4 a permit shall be refused or subjected to conditions if human life or other important assets are at risk.   Section 6 states that the Federal Council is the only authority competent to grant such permits.   No appeal is possible against the decision of the Federal Council.   31.    According to the Federal Court's case-law, "the issue of the nuclear safety of a nuclear power plant must be examined entirely by the Federation in the context of its authorisation procedures" ("die Frage der nuklearen Sicherheit einer Atomanlage abschliessend durch den Bund im Rahmen seiner Bewilligungsverfahren zu prüfen ist"; see Arrêts du Tribunal Fédéral Suisse [ATF] 119 Ia 402).           2.    Federal Judiciary Act   32.    According to Section 96 of the Federal Judiciary Act (Organisationsgesetz) an administrative court appeal (Verwaltungs- gerichtsbeschwerde) can be filed against decisions of Federal authorities relying on Federal law.   However, Section 99 (e) of the Act excludes such an appeal if it is directed against permits for the operation of facilities or installations of a technical nature.           3.    Federal Administrative Procedure Act   33.    The Federal Administrative Procedure Act (Verwaltungsverfahrens- gesetz) concerns administrative proceedings inter alia before the Federal administration.   Sections 44 et seq. concern objection proceedings (Beschwerdeverfahren).   According to Section 44 an administrative decision (Verfügung) may be contested by an objection (Beschwerde).   Section 46 excludes an objection inter alia if an administrative law appeal can be filed with the Federal Court (Bundes- gericht).   Section 48 provides that whoever is affected by the contested decision and has an interest worthy of protection in the annulment or amendment thereof is entitled to file an objection.           4.    Swiss Civil Code   34.    Section 679 of the Swiss Civil Code (Zivilgesetzbuch) states as regards relations between private neighbours:   (Translation)         "Whoever is damaged or threatened with damage by a proprietor who       abuses his property right can file an action in order to have the       damage set aside or to obtain protection against threatening       damage and to obtain compensation."   (Original)         "Wird jemand dadurch, dass ein Grundeigentümer sein       Eigentumsrecht überschreitet, geschädigt oder mit Schaden       bedroht, so kann er auf Beseitigung der Schädigung oder auf       Schutz gegen drohenden Schaden und auf Schadenersatz klagen."   35.    Section 684 para. 2 of the Swiss Civil Code prohibits inter alia interferences by means of smells, noise or vibrations which are damaging and unjustified according to the situation and nature of the real properties.           5.    Federal Act on Expropriation   36.    The Federal Act on Expropriation (Enteignungsgesetz) envisages in Section 1 the right to expropriation in the interest of the Confederation or in favour of another public interest.   Section 5 para. 1 states:   (Translation)         "The object of the right to expropriation can be ... neighbours'       rights derived from the real property as well as the personal       rights of tenants ... of the properties affected by the       expropriation."   (Original)         "Gegenstand des Enteignungsrechts können ... die aus dem       Grundeigentum hervorgehenden   Nachbarrechte, ferner die       persönlichen Rechte von Mietern ... des von der Enteignung       betroffenen Grundstückes sein."   37.    The Federal Court has expressed itself in respect of this provision as follows:         "Les actions fondées sur (l') art. 679 ... du Code Civil ... font       partie des droits susceptibles d'être expropriés au sens de       l'art. 5 ...   Si les immissions, ou autres effets prétendus       excessifs, proviennent de la construction, conforme au droit       applicable, d'un ouvrage d'intérêt public pour lequel il est       recouru à l'expropriation, ou sont la conséquence de       l'utilisation d'un tel ouvrage conforme à sa destination, les       actions du droit privé tendant à la cessation du trouble ou à la       réparation du dommage ne peuvent être exercées.   La prétention       en versement d'une indemnité pour expropriation se substitue       alors aux actions du droit privé et doit être soumise au juge de       l'expropriation, lequel est compétent pour se prononcer non       seulement sur l'indemnité mais également sur l'existence du droit       ...   Le refus de l'expropriant de faire ouvrir une procédure peut       être attaqué, en dernière instance, par la voie du recours de       droit administratif au Tribunal fédéral." (see ATF 116 Ib 253)   38.    The expropriation may concern all or only part of the property rights:         "en vertu de l'article 5 ... les droits résultant des       dispositions sur la propriété foncière en matière de rapports de       voisinage peuvent faire l'objet de l'expropriation et être       supprimés ou restreints temporairement ou définitivement,       moyennant le respect du principe de la proportionnalité ..." (cf.       ATF 119 Ib 341)   39.    Section 5 of the Federal Expropriation Act has, for instance, been invoked by neighbours to busy national roads who feared hazardous exhaust substances (cf. ATF 118 Ib 205).   According to the Federal Court's case-law, compensation will be granted if the nuisance was not foreseeable; if it specially concerns the proprietor; and if it results in serious damage (cf. loc. cit. 205).   The foreseeability will depend inter alia on whether the neighbour, at the time when he obtained the property, could reasonably be aware of the forthcoming nuisance (cf. ATF 111 Ib 234).     III.   OPINION OF THE COMMISSION     A.     Complaints declared admissible   40.    The following complaints were declared admissible:   -      under Article 6 para. 1 (Art. 6-1) of the Convention the applicants' complaint about the lack of access to court in respect of the decision of the Swiss Federal Council of 14 December 1992 to grant the operation permit of the Mühleberg nuclear power plant and about the proceedings before the Federal Council;   -      under Article 13 (Art. 13) of the Convention the applicants' complaint that no effective remedy was available to them under domestic law enabling them to complain about a breach of their right to life under Article 2   (Art. 2) of the Convention and about a breach of their right to respect for bodily integrity guaranteed in Article 8 (Art. 8) of the Convention.     B.     Points at issue   41.    Accordingly, the issues to be determined are:   -      whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention;   -      whether there has been a violation of Article 13 (Art. 13) of the Convention.     C.     Article 6 para. 1 (Art. 6-1) of the Convention   42.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention of the lack of access to court.   In particular, they request a court which may completely and freely examine their right to bodily integrity and the protection of their property, as affected by the operation permit, in respect of the facts and the applicable law.   The applicants also complain that the Federal Council disregarded basic principles of fairness and that the Federal Council and various witnesses were not impartial.   43.    Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as relevant:         "In the determination of his civil rights and obligations ...       everyone is entitled to a fair ... hearing ... by (a) tribunal       ..."   44.    The applicants submit that the jurisdiction in matters of nuclear energy falls exclusively to the Federal Council.   Insofar as it would be possible to institute compensation proceedings before a court for the expropriation of the property rights, the applicants submit that the court concerned could not examine whether the operation permit of the Federal Council should be quashed or withdrawn.   The applicants also refer to the Federal Court's case-law according to which matters of nuclear safety are to be examined solely by the Federation. Finally, the applicants point out that an administrative law appeal to the Federal Court against a decision of the Federal Council would not have been possible.   45.    The respondent Government contest the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to the proceedings at issue.   The Government furthermore contend that the applicants failed to raise their complaints in the domestic proceedings, though the formal and material aspects of the present case partly coincide.   In principle, the Government distinguish between access to court within the meaning of Article 6 (Art. 6) of the Convention in respect of the operation permit itself, on the one hand, and in respect of any damage resulting from the operation of the nuclear power plant, on the other.   46.    Insofar as the applicants relied on health hazards, the applicants would, in the Government's opinion, be contesting the operation permit as such.   In this respect the Government do not exclude that an action could have been raised on the basis of Sections 679 and 684 of the Swiss Civil Code or of Section 5 of the Federal Expropriation Act, though it is submitted, also with reference to the Government's submissions upon the admissibility of the application (see below, p. 21), that this would have been an exceptional case.   47.    Insofar as the applicants invoke their right to property, the Government submit that they could have filed an action based on Sections 679 and 684 of the Civil Code, claiming restrictions to this right and, as a result, have requested compensation for the diminished value of their property in view of the nuclear power plant.   While no decision could be taken on the operation permit itself, the judge concerned would have decided any financial claims resulting from the activities of the nuclear power plant.   48.    According to the Convention organs' case-law, Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way the Article embodies the "right to a court" of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Eur. Court H.R., Golder judgment of 21 January 1975, Series A no. 18, p. 18, para. 36; Philis judgment of 27 August 1991, Series A no. 209, p. 20, para. 59).   Moreover, the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1, (Art. 6-1) or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte judgment of 10 February 1983, Series A no. 58, p. 16, para. 29). Furthermore, in assessing the sufficiency of the review available to the applicants, regard must be had to matters such as the subject- matter of the contested decision, the manner in which that decision was arrived at, and the content of the dispute, including the desired and actual grounds of the action or appeal (see Eur. Court H.R., Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, para. 45).   49.    In the present case, the applicants claim that in view of their right to bodily integrity and their property rights, an operation permit should not have been granted to the Mühleberg nuclear power plant.   50.    The Commission - which in its decision on admissibility has found Article 6 para. 1 (Art. 6-1)   of the Convention to be applicable in the present case - must therefore examine whether the applicants had at their disposal a "tribunal" within the meaning of that provision which would have examined these claims.   51.    There can be no doubt that the Federal Council, i.e. the Swiss Federal Government, which decided on 14 December 1992 in first and last instance on the operation permit, did not constitute a tribunal within the meaning of Article 6 para. 1 (Art. 6-1).   Indeed, the applicants are complaining that there was no court which could have reviewed the Federal Council's decision.   52.    The issue arises whether the applicants could have brought their claims before any domestic court.   53.    The Commission notes that Section 679 of the Swiss Civil Code envisages the possibility of introducing an action alleging a breach of property rights of a neighbour for damage emanating from another neighbouring property.   This action may be introduced against private persons and companies.   In the present case the Commission notes that the Mühleberg nuclear power plant is indeed run by a private company.   54.    Moreover, if such damage were to arise in the context of a construction in the interest of the Confederation or another public interest, as could also be alleged in the present case, Section 5 of the Federal Expropriation Act envisages the possibility of obtaining compensation for the expropriation of the property rights of the neighbour (see above, paras. 36 et seq.).   55.    However, the courts would not have full jurisdiction to review the factual and legal issues of the case within the meaning of the Convention organs' case-law (see Eur. Court H.R., Albert and Le Compte judgment, loc. cit., Bryan judgment, loc. cit.).   Thus, according to the Federal Court's case-law, matters of nuclear safety are solely to be examined by the Federation in the context of its authorisation procedures (see above, para. 31).   Indeed, in proceedings based on Section 5 of the Federal Expropriation Act, the Federal Court has held that the court merely has the competence to examine whether there is a right at issue, and to determine the amount of compensation for expropriation (see above, paras. 37 et seq.).   56.    In the Commission's opinion, therefore, no procedure has been sufficiently made out which would have enabled a court to review the Federal Council's decision as to the applicants' claim that, in view of their right to bodily integrity and their property rights, an operation permit should not have been granted to the Mühleberg nuclear power plant (see above, para. 49).   57.    The applicants did not, therefore, have access to a court as required by Article 6 para. 1 (Art. 6-1) of the Convention.           CONCLUSION   58.    The Commission concludes, by 16 votes to 12, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.     D.     Article 13 (Art. 13) the Convention   59.    The applicants have also complained under Article 13 (Art. 13) of the Convention that no effective remedy was available to them under domestic law enabling them to complain about a breach of their right to life under Article 2 (Art. 2) of the Convention and about a breach of their right to respect for bodily integrity guaranteed in Article 8 (Art. 8) of the Convention.   60.    Article 13 (Art. 13) of the Convention states:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."   61.    The respondent Government submit that the applicants have not put forward any "arguable claims" as established in the Convention organs' case-law (see Eur. Court H.R., Boyle and Rice v. United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).   62.    The Commission considers that the applicants, who have also invoked Articles 2 (Art. 2) and 8 (Art. 8) of the Convention, are in fact complaining of the decision of the Federal Council of 14 December 1992.   In respect of this decision, the Commission has just found that there has been a breach of Article 6 para. 1 (Art. 6-1) of the Convention in that the applicants did not have access to a court, as required by this provision.   The Commission furthermore recalls the case-law according to which Article 13 (Art. 13), as a more general guarantee, is not applicable in cases where the more specific guarantees of Article 6 (Art. 6) apply.   The requirements of Article 13 (Art. 13) are less strict than, and are here absorbed by, those of Article 6 (Art. 6) of the Convention (see Eur. Court H.R., Philis judgment of 27 August 1991, Series A no. 209, p. 23, para. 67).           CONCLUSION   63.    The Commission concludes, by 27 votes to 1, that no separate issue arises under Article 13 (Art. 13) of the Convention.     E.     Recapitulation   64.    The Commission concludes, by 16 votes to 12, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see above, para. 58).   65.    The Commission concludes, by 27 votes to 1, that no separate issue arises under Article 13 (Art. 13) of the Convention (see above, para. 63).     Secretary to the Commission                  Acting President                                            of the Commission         (H.C. KRÜGER)                           (H. DANELIUS)                                                           (Or. English)              DISSENTING OPINION OF MM. H.G. SCHERMERS, B. MARXER,         M.A. NOWICKI, I. CABRAL BARRETO, J. MUCHA AND C. BÎRSAN           We regret that we cannot agree with the majority that there has been a violation of Article 6 para. 1 of the Convention.         We note that Section 679 of the Swiss Civil Code envisages an action alleging a breach of property rights of a neighbour for damage emanating from another neighbouring property (see above, para. 53).         Moreover, Section 5 of the Federal Expropriation Act envisages the possibility of obtaining compensation for the expropriation of the property rights of the neighbour (see above, para. 54).         According to the Federal Court's case-law (see above, paras. 37 et seq.), a court will then decide on the matter; in particular, the court has the competence to examine whether there is a right at issue, and to determine the amount of compensation for expropriation.   In the light of the principle of proportionality, expropriation may cover some or all of the person's property rights as a neighbour.   If the expropriating neighbour refuses to institute such proceedings, the Federal Court, acting upon the neighbour's administrative law appeal, will decide in last instance.         We further note that according to the Federal Court's case-law (see above, para. 39), compensation will be granted if the nuisance was not foreseeable; if it specially concerned the proprietor; and if it resulted in serious damage.   In the present case, at least the proprietors and tenants living in the area before the nuclear power plant was constructed, could have maintained that the alleged damage resulting from the nuclear power plant was unforeseeable.   They could also have claimed that as the immediate neighbours they were specially concerned; and that the effects of the nuclear power plant would result in serious hazards to their health.   Their claims to compensation would not therefore appear prima facie unreasonable.         The applicants nevertheless dispute whether such a court could have decided freely; they consider that such a court would consider itself bound by the operation permit granted by the Federal Council, i.e. the Swiss Government.         It is true that the proceedings referred to would not have permitted an examination of the operation permit of the nuclear power plant as such.         However, the courts concerned would have been called upon to address the issue of compensation for the limitation in value of the applicants' property rights in view of the interference, if any, with their bodily integrity.   Moreover, when examining whether or not to award compensation for expropriation of some or all of the applicants' property rights, the courts concerned would have been obliged to address the issue of health hazards, if any, arising from the nuclear power plant.         Finally, according to the Federal Court's case-law, the courts would have been unrestricted in their examination as to whether property rights of the applicants as neighbours existed; as to the extent to which the property rights had been restricted in view of any health hazards; and as to the amount of compensation to be awarded (see above, para. 38).         In our opinion, the applicants would therefore have had a tribunal at their disposal within the meaning of Article 6 para. 1 of the Convention.         In our view therefore there has been no violation of Article 6 para. 1 of the Convention.                                                           (Or. English)                      DISSENTING OPINION OF MR. S. TRECHSEL               JOINED BY MM. A.S. GÖZÜBÜYÜK, B. CONFORTI,                   D. SVÁBY, P. LORENZEN AND K. HERNDL           I regret that I cannot agree with the majority that there has been a violation of Article 6 in the present case as I am of the opinion that Article 6 does not apply to the dispute at issue.         If one looks at the applicants' complaints in a narrow perspective, it is difficult to distinguish the case from previous case-law, e.g., the case of Benthem (see Eur. Court H.R., judgment of 23 October 1985, Series A no. 97) and of Skärby (see Eur. Court H.R., judgment of 28 June 1990, Series A no. 180-B).         However, the present case concerns the authorisation to operate a nuclear power plant.   This is a matter of national importance which is the object of heated public debate in Switzerland as well as in other countries.   On the one hand, such plants produce a considerable part of the energy consumed in the country at relatively low ecological costs; on the other hand, the dangers of such an operation are enormous in case of an accident.   As the Chernobyl catastrophe has shown, effects may be registered at hundreds, if not thousands of kilometers' distance.         In contrast to the cases dealt with so far by the Commission and the Court, the issues involved in the authorisation to operate a nuclear power plant go far beyond the immediate neighbourhood.   While I do not deny that civil rights of neighbours may be affected, I find it artificial to say that the decision on such an authorisation can be regarded as a "determination of civil rights and obligations".         I will illustrate this with an argument ad absurdum:         Let us suppose a Government envisages military action against a neighbouring country.   It will be possible to identify certain geographical areas   with a high probability of considerable damage to property, even to life and limb.   Could persons living in that area apply to a court with a view to having it decide whether the belligerent action is lawful?   I cannot believe that such an interpretation of Article 6 would be correct.         The policy of a country in matters of energy-supply is of general interest and must be decided upon in the democratic political process designed for decision-making on